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«THE EUROPEAN NETWORK OF LEGAL EXPERTS IN THE FIELD OF GENDER EQUALITY Multiple Discrimination in EU Law Opportunities for legal responses to ...»

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Another case, of a Court of Appeal,37 seems interesting. A black woman employed by the Parisian public transport authority (RATP) claimed that she had suffered discrimination on the grounds of sex and race both in terms of career progression and access to vocational training. A comparison with the situation of The Cour de cassation publishes all its decisions on the Legifrance website. Thus, in a keyword search, it is possible to select all judgments by the Cour de cassation referring to ‘discrimination’.

After selecting these judgments, it was possible to analyse on which grounds of discrimination the claims were based. The same analysis cannot be made for the decisions of lower tribunals, because they are not published on a website.

Cass. Soc. 4 July 2001, No. 99-45598, on sex and trade union activity; Cass. Soc. 24 January 2007, No. 05-42054, on sex and trade union activity; Cass. Soc. 11 April 2008, No. 07-41099, on sex and origins; Cass. Soc. 28 October 2008, No. 07-41856, on sex and trade union activity.

Cass. Soc. 28 October 2008, No. 07-41856, on sex and trade union activity.

Judgment of the Paris Court of Appeal, 29 January 2002, No. 2001/32582.

54 Multiple Discrimination in EU Law others workers clearly revealed that her career progression had come to a halt at a particular point. The group used for the purposes of comparison included men and a woman. Thus, seemingly, she was entitled to compare herself to a group composed mainly of men (white men) and one woman. On the facts, the employer was unable to provide objective grounds justifying the difference in treatment. Here again, the Court of Appeal did not approach the matter asking first if there was discrimination based on gender and second if there was a discrimination based on race.

In fact when reading these decisions, one has the impression that for the courts the alleged ground of discrimination is not so important if a difference is found between one worker and other workers. And in fact, the Cour de cassation, to which the matter was brought following the judgment of the Court of Appeal, confirms the judgment of the Court of Appeal, in a very short judgment of its own.38 The Cour de cassation simply states that the inequality has been proven. When we read the judgment of the Cour de cassation, it is impossible to know on which grounds the claim was originally based. It reveals that the manner in which judicial decisions are written sometimes hides the fact that multiple discrimination was initially alleged. This certainly has to do with one specificity of the French legal framework on discrimination. Most discrimination cases relate to wages, in particular, since 1996, when the Cour de cassation held that there is an equal treatment principle under which workers have a right to ‘equal pay for equal work’. The consequences of this principle are very important and litigation has significantly increased since that judgment, also because the Cour de cassation allocates the burden of proof in equal pay cases in the same manner as it does in discrimination cases. Thus the ground of the difference established becomes irrelevant. The comparators are simply people doing the same work and, accordingly, there is no focus on the personal characteristics of claimants.

It suffices for the claimant to establish facts from which it may be presumed that there has been a difference in treatment. Once that has been done, the burden shifts to the employer to prove that this difference in treatment is justified by objective grounds.

Judgments in these equal pay cases do not provide any information on the source of the difference of treatment and the characteristics of the claimants are ignored. In this judicial context, there is little room for explicit recognition of the specificities of multiple discrimination while at the same time it also allows a judicial treatment of this type of discrimination.

Concerning the French Equality Body, the HALDE (High Authority for the fight against discrimination and for equality), it seems that claims are classified according to the ground of the alleged discrimination and the HALDE annual reports do not report any claims based on multiple discrimination. The analyses of the HALDE are also grounds based, with separate sections for different grounds.

3. Any cases where gender-related discrimination is overlooked?

As there have been very few and no significant cases on multiple discrimination, it is not possible to identify cases on multiple discrimination where gender-related discrimination is overlooked.

However, it could be argued that a single-ground discrimination approach could sometimes overlook an issue of gender discrimination. For example, the ban on Islamic headscarves is only analysed as a discrimination based on religion and the gender aspect is ignored while it could be interpreted as a form of gender

Cass. Soc. 20 March 2007, No. 02-42427.

Multiple Discrimination in EU Law 55 discrimination.39 The single-ground approach could not be the best way to analyse this type of discrimination. However, in a recent deliberation concerning the headscarf, the HALDE states that the burqa or niqab might contradict the French republican values and more precisely the principle of equality between men and women because the burqa or niqab, beyond their religious meanings, symbolises women’s oppression.40 The gender aspect is reintroduced into the debate but not really where it was expected!

4. Proof and procedural problems It can be argued that French legislation on discrimination could apply to multiple discrimination which means that the specific burden of proof, the right of trade union and association to bring a case for a victim, etc. could also apply to multiple discrimination. If this interpretation is right (as until now there has not really been confirmation by case law, and there are no significant case laws on multiple discrimination), there will be no particular problems of proofs or procedural problems related to cases on multiple discrimination.

5. Description of a specific case If it is possible at all to find any cases referring to more than one ground of discrimination, they are not significant enough.

6. Effects of legislation and case law in practice As there is no explicit legislation on multiple discrimination, there have been no studies on the effects of such legislation. Generally, multiple discrimination has not been given great academic attention, at least among lawyers.

7. Role of equality bodies The French Equality Body, the HALDE, has general competences in the field of discrimination and it has the responsibility to cover all grounds of discrimination.

However, there is no explicit prohibition of multiple discrimination in France and until now the HALDE has focussed its actions on a single-ground approach. For example, on its website, the claims and decisions of the HALDE are classified by grounds of discrimination. Until now the HALDE has not played a major role in tackling multiple discrimination. This does not mean that the HALDE does not have the competence to tackle this type of discrimination. Because of its general competencies the HALDE should be able to address the issue of multiple discrimination and could also play an important role. The HALDE could contribute to the dissemination of the concept of multiple discrimination, it could also contribute to the knowledge on multiple discrimination by conducting and commissioning studies and research. What would be interesting to know is if claimants may prefer to choose one ground of discrimination and/or if there is a process of selecting the discrimination ground by the HALDE itself.

8. Reinforcement of legal approach at EU level necessary?

Reinforcement of the legal approach aimed at combating multiple discrimination could create greater awareness of the problem, as in France there is no real debate on See for example the HALDE’s deliberations No. 2008-166, 29 September 2008 or No. 2008-197, 29 September 2008.

Deliberation No. 2008-193, 15 September 2008. The case was about the prohibition to wear a burqa in the mandatory linguistic training sessions for foreign people wishing to reside in France.

56 Multiple Discrimination in EU Law this issue. In this case, it will be necessary to define multiple discrimination at European level and to prohibit this discrimination. Like in the European Directives on discrimination, direct and indirect discrimination should be prohibited, the burden of proof should apply, etc. One of the questions to be answered is the scope of the prohibition of multiple discrimination. From a gender perspective, it should have the same scope as the prohibition of discrimination based on gender and thus it should not apply only in employment relations as the 2000/78 Directive does.

9. Community-law definition of multiple discrimination necessary?

If we believe that reinforcement of the legal approach on multiple discrimination is necessary, there is also a need for a Community-law definition of multiple discrimination.

10. Available literature or research?

No literature or research on multiple discrimination is available in France.

11. Further research The definition of multiple discrimination should be clarified.

When discussing multiple discrimination, are they certain types of multiple discrimination which would need better protection, for example gender and race or gender and religion? Is gender, most of the time, part of multiple discrimination, i.e.

one of the grounds which has to be combined with another?

Until now in France, there has been a single-ground approach to discrimination. It will be interesting to analyse, if possible, how many cases could be defined as multiple-discrimination cases, and, after identifying these cases, to analyse why and how claimants have selected one ground of discrimination to bring their cases and what could be the consequences of this selection process.

GERMANY – Beate Rudolf

1. Concept of multiple discrimination in legislation German law does not use the term ‘multiple discrimination,’ which means that it neither defines it nor prohibits it explicitly. However, it contains a specific rule for situations where unequal treatment occurs on the basis of several prohibited grounds.

According to Section 4 of the General Equality Act (Allgemeines Gleichbehandlungsgesetz, AGG), such unequal treatment on the basis of several prohibited grounds must be justified with respect to each of these grounds. By speaking of ‘unequal treatment on the basis of several prohibited grounds,’ the law does not distinguish between multiple and intersectional discrimination; both are covered by the provision.

2. Case law There is one case in which multiple discrimination was alleged and which has made the headlines because of the high material damages claimed by the claimant (EUR 434 000). In this particular case,41 a German woman of Turkish origin brought Labour Court Wiesbaden, judgment 5 Ca 46/08 of 18 December 2008;

http://www.arbg-wiesbaden.justiz.hessen.de/irj/ArbG_Wiesbaden_Internet?rid=HMdJ/ArbG_ Wiesbaden_Internet/sub/c9b/c9b70103-326a-4e11-f3ef-ef97ccf4e69f,,,11111111-2222-3333-4444Multiple Discrimination in EU Law 57 a claim for discrimination on grounds of sex and ethnic origin. She worked as an agent for an insurance company and sold insurances in a particular area. When she returned after four months’ maternity leave, she was assigned a new area that generated considerably lower premiums. Her successor was male and of German ethnic origin. She also alleged that he received better treatment, such as an office and a secretary, and that she was denied her prior special benefits, such as a laptop computer. The Labour Court of Wiesbaden found that only the allocation of a less attractive area constituted discrimination because it occurred immediately after her return from maternity leave. However, it did not consider the other facts as indicative for gender-based or ethnic discrimination. As the judgment has not yet been published, it is impossible to assess the persuasiveness of the Court’s evaluation of the facts brought forward by the claimant to show a prima facie case of discrimination. It is noteworthy, however, that the Court’s press release does not use the term multiple discrimination. It thus seems that the case was dealt with as one of compound discrimination, i.e. a case of two separate grounds of discrimination having been relied on in the same case.

3. Any cases where gender-related discrimination is overlooked?

In addition to the case reported above, there are numerous decisions in labour law (public services and private employment relations) concerning the dismissal or refusal to hire women because of their wearing a headscarf for religious reasons. All these decisions examine the problem as religious discrimination; the fact that it might also amount to indirect gender-based discrimination (and ethnic discrimination) is not taken into account. The reason might be that in determining whether there is indirect gender-based discrimination, it has to be examined whether the measure in question pursues a legitimate aim in a proportionate way. Thus, the considerations used with respect to determining whether there has been direct discrimination on grounds of the claimant’s religion will have to be referred to, again. Apparently, lawyers do not see any added value in using the concept of multiple discrimination in these cases.

4. Proof and procedural problems As there is no pertinent case law, questions of proof or procedural questions have not arisen so far. In legal literature, commentators express the view that moral damages should be higher in cases of multiple discrimination than in cases of single-ground discrimination. This had already been the view expressed by the legislator. However, these commentators consider that this approach does not amount to multiplying the ‘simple’ moral damage by the number of grounds infringed (no doubling of moral damage in case of multiple discrimination based on two grounds, etc.).

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